Editing Byron White (section)

==Supreme Court==

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Message of President John F. Kennedy nominating Byron R. White to be an Associate Justice of the Supreme Court, 04-03-19 - NARA - 306363.tif|John F. Kennedy's letter to the Senate nominating White to the Supreme Court
US Supreme Court November 19, 1962.png|The Supreme Court seen pictured on November 19, 1962. White (top left) was the Court's second most junior justice, after [[Arthur Goldberg]], having arrived on the bench in April.
File:Burger Court in 1973.jpg|The Supreme Court pictured in 1973, White is pictured at bottom right
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On April 3, 1962, President Kennedy nominated White to be an [[Associate justice of the Supreme Court of the United States|associate justice]] of the [[Supreme Court of the United States|Supreme Court]], succeeding [[Charles Evans Whittaker]].<ref name="SCnominations">{{cite web| title=Supreme Court Nominations (1789-Present)| url=https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm| publisher=United States Senate| location=Washington, D.C.| access-date=February 16, 2022| archive-date=October 7, 2019| archive-url=https://web.archive.org/web/20191007075720/https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm| url-status=live}}</ref> The president said of White—a longtime friend of his—that "he has excelled at everything. And I know that he will excel on the highest court in the land."<ref name="usa today" /> White was confirmed on April 11, 1962, by a [[voice vote]].<ref name="SCnominations" /> He took the judicial oath of office on April 16, 1962, and served until June 28, 1993.<ref>{{cite web| url=https://www.supremecourt.gov/about/members_text.aspx| title=Justices 1789 to Present| publisher=Supreme Court of the United States| location=Washington, D.C.| access-date=February 16, 2022| archive-date=April 15, 2010| archive-url=https://web.archive.org/web/20100415034624/https://www.supremecourt.gov/about/members_text.aspx| url-status=live}}</ref> His Supreme Court tenure was the fourth-longest of the 20th century.<ref name="usa today" />

Upon the request of Vice President-Elect [[Al Gore]], White administered the oath of office on January 20, 1993, to Gore. It was the only time White administered an oath of office to a vice president. During his service on the high court, White wrote 994 opinions. He was fierce in questioning attorneys in court,<ref name="usa today" /> and his votes and opinions on the bench reflect an ideology that has been notoriously difficult for popular journalists and legal scholars alike to pin down. He was seen as a disappointment by some Kennedy supporters who wished he had joined the more liberal wing of the court in its opinions on ''Miranda v. Arizona'' and ''Roe v. Wade''.<ref name="supreme court" />

White often took a narrow, fact-specific view of cases before the Court and generally refused to make broad pronouncements on constitutional doctrine or adhere to a specific judicial philosophy, preferring what he viewed as a practical approach to the law.<ref name="usa today" /><ref name="supreme court" /> In the tradition of the [[New Deal]], White frequently supported a broad view and expansion of governmental powers.<ref name="usa today" /><ref>''[[New York v. United States (1992)|New York v. United States]]'', 488 U.S. 1041 (1992). White, J., concurring in part and dissenting in part.</ref> He consistently voted against creating constitutional restrictions on the police, dissenting in the landmark 1966 case ''[[Miranda v. Arizona]]''.<ref name="usa today" /> In that dissent, he said that aggressive police practices enhance the individual rights of law-abiding citizens. His jurisprudence has sometimes been praised for adhering to the doctrine of [[judicial restraint]].<ref>{{cite journal |first=Dennis |last=Hutchinson |title=Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court |volume=74 |journal=U. Colo. L. Rev. |page=1409 |year=2003 }}</ref>

===Substantive due process doctrine===
Frequently a critic of the doctrine of "[[substantive due process]]", which involves the judiciary reading substantive content into the term "liberty" in the Due Process Clause of the [[Fifth Amendment to the United States Constitution|Fifth Amendment]] and [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]], White's first published opinion as a Supreme Court Justice was a joint dissent with Justice Clark in ''[[Robinson v. California]]'' (1962), foreshadowing his career-long distaste for the doctrine. In ''Robinson'', he criticized the remainder of the Court's unprecedented expansion of the Eighth Amendment's prohibition of "cruel and unusual punishment" to strike down a California law providing for civil commitment of drug addicts. He argued that the Court was "imposing its own philosophical predilections" on the state in this exercise of judicial power, although its historic "allergy to substantive due process" would never permit it to strike down a state's economic regulatory law in such a manner.

In the same vein, he dissented in the controversial 1973 case ''[[Roe v. Wade]]''. White voted to strike down a state ban on [[contraceptive]]s in the 1965 case of ''[[Griswold v. Connecticut]]'', although he did not join the majority opinion, which famously asserted a "[[right of privacy]]" on the basis of the "penumbras" of the [[United States Bill of Rights|Bill of Rights]]. White and Justice [[William Rehnquist]] were the only dissenters from the Court's decision in ''Roe'', though White's dissent used stronger language, suggesting that ''Roe'' was "an exercise in raw judicial power" and criticizing the decision for "interposing a constitutional barrier to state efforts to protect human life." White, who usually adhered firmly to the doctrine of ''[[stare decisis]]'', remained a critic of ''Roe'' throughout his term on the bench and frequently voted to uphold laws restricting abortion, including in ''[[Planned Parenthood v. Casey]]'' in 1992.<ref>''Thornburg v. American Coll. of Obst. & Gyn.'' 476 U.S. 747 (1986). White, J., dissenting.</ref>

White explained his general views on the validity of substantive due process at length in his dissent in ''[[Moore v. City of East Cleveland]]'' (1977):

<blockquote>The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major [[Gloss (annotation)#In law|judicial gloss]] on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930s and 1940s, the Court should be extremely reluctant to breathe still further substantive content into the Due Process clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority.</blockquote>

White parted company with Rehnquist in strongly supporting the Supreme Court decisions striking down laws that discriminated on the basis of sex, agreeing with Justice [[William J. Brennan]] in 1973's ''[[Frontiero v. Richardson]]'' that such laws should be subject to strict scrutiny. Only three justices joined Brennan's plurality opinion in ''Frontiero''; later [[gender discrimination]] cases would be subjected to intermediate scrutiny (see ''[[Craig v. Boren]]''). In ''[[Rostker v. Goldberg]]'', White joined Brennan and Marshall in dissent arguing that male-only [[Selective Service]] registration was unconstitutional.<ref>{{cite web |last1=White |first1=Byron |title=Rostker v. Goldberg |url=https://supreme.justia.com/cases/federal/us/453/57/#tab-opinion-1954231 |website=Justia |access-date=9 April 2022 |archive-date=April 9, 2022 |archive-url=https://web.archive.org/web/20220409020032/https://supreme.justia.com/cases/federal/us/453/57/#tab-opinion-1954231 |url-status=live }}</ref>

White wrote the majority opinion in ''[[Bowers v. Hardwick]]'' (1986), which upheld [[Georgia (U.S. state)|Georgia]]'s anti-sodomy law against a substantive due process attack:<ref name="usa today" />

<blockquote>The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.... There should be, therefore, great resistance to ... redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.</blockquote>

White's opinion in ''Bowers'' typified his fact-specific, deferential style, treating the issue in that case as presenting only the question of whether homosexuals had a fundamental right to privacy, even though the statute in ''Bowers'' potentially applied to heterosexual sodomy.<ref>''Bowers'', 478 U.S. 186, 188, n. 1.</ref> Georgia, however, conceded during oral argument that the law would be inapplicable to married couples under the precedent set forth in ''[[Griswold v. Connecticut]]''.<ref>Oral argument of ''Bowers v. Hardwick'', available at Oyez.org, https://www.oyez.org/cases/1980-1989/1985/1985_85_140 {{Webarchive|url=https://web.archive.org/web/20150924083315/http://www.oyez.org/cases/1980-1989/1985/1985_85_140 |date=September 24, 2015 }}</ref> A year after White's death, ''Bowers'' was overruled in ''[[Lawrence v. Texas]]'' (2003).

===Death penalty===
[[File:US Supreme Court Justice Byron White - 1976 official portrait.jpg|thumb|upright=0.95|Official portrait, 1976]]
White took a middle course on the issue of the death penalty: he was one of five justices who voted in ''[[Furman v. Georgia]]'' (1972) to strike down several state capital punishment statutes, voicing concern over the arbitrary way in which the death penalty was administered. The Furman decision ended [[capital punishment in the U.S.]] until the court's ruling in ''[[Gregg v. Georgia]]'' (1976).  In that case, White voted to uphold Georgia's new capital punishment law.

White accepted the position that the [[Eighth Amendment to the United States Constitution]] required that all punishments be "proportional" to the crime;<ref>''Harmelin v. Michigan'', 501 U.S. 957 (1991). White, J., dissenting.</ref> thus, in ''[[Coker v. Georgia]]'' (1977), he wrote the opinion that invalidated the death penalty for rape of a 16-year-old married girl. His first reported Supreme Court decision was a dissent in ''[[Robinson v. California]]'' (1962), in which he criticized the Court for extending the reach of the Eighth Amendment. In ''Robinson'' the Court for the first time expanded the constitutional prohibition of "cruel and unusual punishments" from examining the nature of the punishment imposed and whether it was an uncommon punishment − as, for example, in the cases of flogging, branding, banishment, or electrocution − to deciding whether any punishment at all was appropriate for the defendant's conduct. White said: "If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress."  Consistent with his view in ''Robinson'', White thought that imposing the death penalty on minors was constitutional, and he was one of the three dissenters in ''[[Thompson v. Oklahoma]]'' (1988), a decision that declared that the death penalty as applied to offenders below 16 years of age was unconstitutional as a cruel and unusual punishment.

===Abortion===
Along with Justice [[William Rehnquist]], White dissented in ''[[Roe v. Wade]]'' (the dissenting decision was in the companion case, ''[[Doe v. Bolton]]''), castigating the majority for holding that the U.S. Constitution "values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus."<ref>''Doe v. Bolton'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=179 410 U.S. 179] {{Webarchive|url=https://web.archive.org/web/20041204060248/http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=179 |date=December 4, 2004 }} (1973). Findlaw.com.  Retrieved September 10, 2011.</ref>

===Civil rights===
[[File:Virginia Thomas.JPG|thumb|upright=1.05|White swears in Justice [[Clarence Thomas]] as Thomas' wife, [[Virginia Lamp Thomas|Virginia Lamp]], looks on (1991)]]
White consistently supported the Court's post-''[[Brown v. Board of Education]]'' attempts to fully [[school integration in the United States|desegregate public schools]], even through the controversial line of forced busing cases.<ref>(See ''[[Milliken v. Bradley]]'' (White, J., dissenting)).</ref> He voted to uphold [[affirmative action]] remedies to racial inequality in an education setting in the famous ''[[Regents of the University of California v. Bakke]]'' case of 1978. Though White voted to uphold federal affirmative action programs in cases such as ''[[Metro Broadcasting, Inc. v. FCC]]'', 497 U.S. 547 (1990) (later overruled by ''[[Adarand Constructors v. Peña]]'', 515 U.S. 200 (1995)), he voted to strike down an affirmative action plan regarding state contracts in ''[[City of Richmond v. J.A. Croson Co.|Richmond v. J.A. Croson Co.]]'' (1989).

White dissented in ''[[Runyon v. McCrary]]'' (1976), which held that federal law prohibited [[private school]]s from discriminating on the basis of race. He argued that the legislative history of 42 U.S.C. § 1981 (popularly known as the "[[Ku Klux Klan]] Act") indicated that the Act was not designed to prohibit private racial discrimination but only state-sponsored racial discrimination (as had been held in the ''[[Civil Rights Cases]]'' of 1883). White was concerned about the potential far-reaching impact of holding private racial discrimination illegal, which if taken to its logical conclusion might ban many varied forms of voluntary self-segregation, including social and advocacy groups that limited their membership to blacks:<ref>See Runyon, 427 U.S. 160, 212 (White, J., dissenting)</ref> "Whether such conduct should be condoned or not, whites and blacks will undoubtedly choose to form a variety of associational relationships pursuant to contracts which exclude members of the other race. Social clubs, black and white, and associations designed to further the interests of blacks or whites are but two examples". ''Runyon'' was essentially overruled by 1989's ''Patterson v. McLean Credit Union'', which itself was superseded by the [[Civil Rights Act of 1991]].

===Relationships with other justices===
White said he was most comfortable on Rehnquist's court. He once said of [[Earl Warren]], "I wasn't exactly in his circle."<ref name="usa today" /> On the Burger Court, the chief justice often assigned important criminal procedure and individual rights opinions to White because of his frequently conservative views on these questions.

===Court operations and retirement===
[[File:Byron White with company.jpg|thumb|White (''sitting'') with other members of the Commission on Structural Alternatives for the Federal Courts of Appeals]]White frequently urged the Supreme Court to consider [[Circuit split|cases when federal appeals courts were in conflict on issues of federal law]], believing that resolving such was a primary role of the Supreme Court. Thus, White voted to grant [[certiorari]] more often than many of his colleagues; he also wrote numerous opinions dissenting from denials of certiorari. After White (along with fellow Justice [[Harry Blackmun]], who also often voted for liberal grants of certiorari) retired, the number of cases heard each session of the Court declined steeply.<ref>See David M. O'Brien, The Rehnquist Court's Shrinking Plenary Docket, 81 Judicature 58–65 (September/October 1997).</ref>

White disliked the politics of Supreme Court appointments,<ref name="hutchinson">[[Dennis J. Hutchinson]], ''The Man Who Once Was Whizzer White: a Portrait of Justice Byron R. White'', (Glencoe, The Free Press, 1998)</ref> but had great faith in representative democracy, responding to complaints about politicians and mediocrity in government with exhortations to "get more involved and help fix it."<ref>David C. Frederick, Justice White and the Virtue of Modesty, 55 Stanford L.Rev. 21, 27 (2002)</ref> He retired in 1993, during [[Bill Clinton]]'s presidency, saying that "someone else should be permitted to have a like experience."<ref name="usa today" /> When he retired, White had been the only Democrat on the Court.{{Sfn|Greenhouse|2002}} Clinton nominated (and the Senate approved) Justice [[Ruth Bader Ginsburg]], a judge from the [[United States Court of Appeals for the District of Columbia Circuit|U.S. Court of Appeals for the D.C. Circuit]] and a former [[Columbia University]] law professor, to succeed him.